FIRST DIVISION

[ G.R. No. 244129. December 09, 2020 ]

ELEONOR SAROL, PETITIONER, VS. SPOUSES GEORGE GORDON DIAO AND
MARILYN A. DIAO, ET. AL. RESPONDENT.

DECISION

CARANDANG, J.:

This Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court assails the Resolution[2]
dated December 13, 2018 of the Court of Appeals (CA) in CA-G.R. SP No. 12099 which dismissed the
Petition for Annulment of Judgment[3] filed by petitioner Eleonor Sarol (Sarol) against respondents
Spouses George Gordon Diao and Marilyn Diao (Spouses Diao), and Sheriff IV Norman Stephen Tale
(Sheriff Tale) of the Regional Trial Court (RTC) of Dumaguete City, Branch 44.

Facts of the Case

Sometime in 2007, petitioner Sarol purchased from a certain Claire Chiu a parcel of land located in
Guinsuan, Poblacion, Zamboanguita, Negros Oriental. The parcel of land has an area of 1,217 square
meters and is designated as Lot No. 7150. Sarol claims to have purchased the property for P2,000,000.00,
where she initially paid P1,800,000.00 and settled the remaining balance amounting to P200,000.00 in
2011. On July 20, 2011, the Deed of Sale over the property was executed in view of payment of the
remaining balance worth P200,000.00. Accordingly, the Original Certificate of Title (OCT) No. FV-44750
registered in the name of Claire Chiu was cancelled and Transfer Certificate of Title (TCT) No. 103-
2012000605 was issued in the name of Sarol on February 16, 2012.[4]

Sarol had been in possession of the property since 2007 and began developing a beach resort. She
eventually left the Philippines to reside in Germany. Her father, Emproso Sarol, was made to manage all her
assets in the Philippines, including the beach resort and Lot No. 7150. Sarol also left Marie Jeane Alanta-ol
to manage the beach resort.[5]

Spouses Diao claim that their property is adjacent to Lot No. 7150. Prior the sale of said property to Sarol,
Claire Chiu caused to survey the property yielding an area of 1,217 square meters. However, the area, as
surveyed, is erroneous because it included 464 square meters of Spouses Diao's property. In 2009, Spouses
Diao learned of this overlap. They immediately demanded Claire Chiu and Sarol to return their portion of
the property, but to no avail.[6] In 2015, Spouses Diao filed a complaint[7] with the RTC Branch 44,
Dumaguete City docketed as Civil Case No. 2015-15007 entitled Spouses George Gordon Diao and
Marilyn Diao v. Claire Chiu, joined by her husband Ginghis Gamaliel D. Chiu, the Register of Deeds of
Negros Oriental and Eleanor Sarol. Spouses Diao sought to partially cancel the contracts from which
Claire Chiu derived ownership over Lot No. 7150, to reconvey an area of 464 square meters from said
property in their favor and to hold Claire Chiu and Sarol liable for damages.[8]

Ruling of the Regional Trial Court

In the course of the proceedings for the abovementioned case, summons[9] was issued for service to Claire
Chiu, her husband Ginghis Chiu, the Register of Deeds of Negros Oriental, and Sarol. The address of Sarol
indicated in the summons states "Guinsuan, Poblacion, Zamboanguita, Negros Oriental,"[10] or the location
of the property she purchased from Claire Chiu. OnApril16, 2015, respondent Sheriff Tale issued a Sheriffs
Return of Summons,[11] which states that summons was served on Claire Chiu but could not be served to
Sarol "on the ground that she is out of the country."[12] Spouses Diao then moved for the issuance of alias
summons.[13] In the Sheriffs Return dated July 25, 2015,[14] Sheriff Tale stated his three failed attempts to
personally serve the alias summons to Sarol at Guinsuan, Poblacion, Zamboanguita, Negros Oriental.
Sheriff Tale narrates that on July 10, 2015, the alias summons was not served because nobody was around
the location. In the evening of the same date, he, again, failed to serve the alias summons after receiving
information from the caretaker that Sarol left a few days ago. Early morning of July 11, 2015, Sheriff Tale
spoke with the caretaker and learned that Sarol arrived the Philippines on July 3, 2015 and left for Germany
on July 7, 2015; that the caretaker had no idea of Sarol's return.[15] For this reason, Spouses Diao moved
that summons be served by publication in a newspaper of general circulation in the City of Dumaguete and
in the Province of Negros Oriental pursuant to Section 15, Rule 14 of the Rules of Court on extraterritorial
service of summons.[16] In an Order dated February 5, 2016, the RTC directed service of summons on Sarol
by publication in a newspaper of general circulation in the City of Dumaguete and in the Province of
Negros Oriental, for two consecutive weeks and to send copies of the summons and of the order by
registered mail to the last known address of Sarol in Guinsuan, Poblacion, Zamboanguita Negros Oriental.
[17]

Claire Chiu filed her answer to the complaint, but failed to appear at the pre-trial proceedings. Sarol, on the
other hand, failed to file any pleadings with the RTC. Upon motion of Spouses Diao, Claire Chiu and Sarol
were declared in default in an Order[18] dated January 25, 2017. The Order became final and executory
allowing Spouses Diao to present their evidence ex-parte. On December 13, 2017, the RTC rendered a
Decision[19] in favor of Spouses Diao. The dispositive portion of the Decision of the RTC reads,

WHEREFORE, judgment is hereby rendered:

1. Declaring the Deed of Confirmation and Ratification of Sale and the Deed of Absolute Sale
partially null and void and of no legal effect insofar as they affect the plaintiffs lot;
2. Ordering the defendants to reconvey to the plaintiff the 464-square-meter portion
of Lot No.
7150, Pls-847, identical to Lot No. 2788_B, CSD-07-010295, by executing a deed of
conveyance;
3. Ordering
the defendants Chiu to pay plaintiff Thirty Thousand Pesos (PHP30,000) as moral
damages, and PhP15,000 as exemplary damages;
4. Ordering defendants Chiu to pay plaintiffs
attorney's fees of fifteen thousand Pesos
(PHP15,000) based on quantum meruit; and

5. Dismissing the counterclaim for lack of merit;

Costs against the defendants.

SO ORDERED.[20] (Emphasis in the original)

The Decision of the RTC attained finality. Thereafter and on motion of Spouses Diao, the RTC issued a
Writ of Execution[21] dated May 2, 2018.

In view of the finality of the Decision of the RTC, Sarol filed a Petition for Annulment of Judgement[22]
under Rule 47 of the Rules Court with the CA. She sought to invalidate the Decision of the RTC because
the court a quo did not acquire jurisdiction over her person. Sarol argued that she was not served with any
summons relating to the case instituted by Spouses Diao.[23]

 Ruling of the Court of Appeals

In the assailed Resolution[24] dated December 13, 2018, the CA dismissed the petition for annulment of
judgment. The CA held that Sarol is a Filipino resident, who was temporarily out of the country. Thus, the
rules on service of summons under Section 16, Rule 14 of the Rules of Court is applicable. Under Section
16, service of summons, to a resident defendant, who is temporarily out of the country, may be effected by
modes provided for in Section 15, Rule 14 of the Rules of Court. Following Section 15 on extraterritorial
service of summons, one of the modes of service may be "effected x x x by publication in a newspaper of
general circulation, in which case a copy of the summons and order of the court shall be sent by registered
mail to the last known address of the defendant x x x". The CA found that personal service of the summons
and the alias summons could not be effected at Sarol's address in Guinsuan, Poblacion, Zamboanguita,
Negros Oriental because Sarol was out of the country. Thus, Spouses Diao moved for the service of
summons by publication which the RTC granted in an Order dated February 5, 2016. The CA held that
summons was clearly served on the person of Sarol by publication. Having failed to timely file an answer to
the complaint, Sarol was declared in default. Further, the CA held that Sarol failed to show clear facts and
laws for the petition for annulment of judgment to prosper.[25]

Petitioner's Arguments

Unsatisfied with the Decision of the CA, Sarol filed the instant petition before this Court reiterating that the
RTC did not acquire jurisdiction over her person. Sarolargued that there was a defective service of
summons by Sheriff Tale. While she is named a recipient of the summons, the address, Guinsuan,
Poblacion, Zamboanguita, Negros Oriental, was incorrect. Sarol argued that she never became a resident at
said address. Her last known address in the Philippines was in Barangay Tamisu, Bais City, Negros
Oriental. She claimed that after her purchase of the subject property from Claire Chiu, she migrated to
Germany. Hence, personal service of the summons could not have validly been effected.[26]

Other modes of service of summons were also not proven to have been successfully executed. The
substituted service of summons under Section 7, Rule 14 of the Rules of Court provides that such mode of
service may be effected by leaving copies of the summons: (a) at the defendant's residence with some
person of suitable age and discretion then residing therein; or (b) at defendant's office or regular place of
business with some competent person in charge thereof. Sarol asserted failure on the part of Sheriff Tale to
effect service of summons under this rule. If Sarol's residential address was indeed at Guinsuan, Poblacion
Zamboanguita, Sheriff Tale could have easily served the alias summons to Sarol's caretaker at the beach
resort built on the subject property. In this case, Sarol argued that there was no proof of the successful
substituted service of the alias summons.[27]

Sarol also argued that the RTC erred in allowing the service of summons by publication because none of the
rules for such mode of service are applicable. First, Section 14, Rule 14 of the Rules of Court provides that
service by publication shall be resorted to when: (1) the defendant is unknown or the like; and (2) whenever
his whereabouts are unknown and cannot be ascertained by diligent inquiry. None of the foregoing
conditions are present in Sarol's case because Spouses Diao knew that she was one of the defendants to the
case and that she resided in Germany. Second, Section 15, Rule 14 of the Rules of Court on extraterritorial
service of summons by publication requires that a copy of the summons and order of the court be sent by
registered mail to the last known address of the defendant. Sarol claims that there was no mail to her last
address in the Philippines in Barangay Tamisu, Bais City, Negros Oriental or to her residence in Germany.
Third, Section 16, Rule 14 of the Rules of Court provides that extraterritorial service of summons shall be
made when a resident defendant is temporarily out of the Philippines. Sarol argues that this rule is
inapplicable because she is a permanent resident in Germany.[28] Finally, Sarol claims that no affidavit of
the publisher, editor or advertising manager was presented as proof of service by publication required under
the Rules of Court.[29]
 Respondent's Arguments

In their Comment,[30] Spouses Diao claim that there is no truth to Sarol's lack of knowledge of the
pendency of the case. They argue that Sarol returns to the beach reson every year, and that the resort
caretaker had a pre-arranged agreement with Sheriff Tale to inform the latter when Sarol is in the
Philippines. However, when Sheriff Tale made inquiries of Sarol's return to the country, the caretaker had a
ready reply that Sarol already left. Sarol clearly evaded the service of summons, leaving Spouses Diao with
no other choice but to resort to serve summons by publication. Moreover, a Petition for Annulment of
Judgment may be resorted when there is no available or adequate remedy. Here, Spouses Diao argue that
Sarol lost her opportunity to defend her case for deliberately evading the service of summons.[31]

Ruling of the Court

The proper service of summons is important because it serves to acquire jurisdiction over the person of the
defendant or respondent, or to notify said person of the action filed against them and to afford an
opportunity to be heard on the claims made against them.[32] Logically, in order to effect the proper service
of summons it is crucial to furnish the correct address of the defendant or respondent in a complaint. The
foregoing is in consonance with the doctrine of due process. A violation of this due process would be a
jurisdictional defect.[33] Thus, absent the proper service of summons, the trial court does not acquire
jurisdiction and renders null and void all subsequent proceedings and issuances in relation to the case.[34]

Here, the summons and alias summons issued by the court a quo to Sarol indicated her residential address
at "Guinsuan, Poblacion, Zamboanguita, Negros Oriental."[35] The address is undisputedly the location of
the property, which is the subject matter of this case. We find that in the complaint for reconveyance[36]
filed by Spouses Diao with the RTC of Dumaguete City, Branch 44, Sarol was included as a party-
defendant for being the purchaser of the disputed property from co-defendant Claire Chiu.[37] To Our mind,
as Sarol purchased the disputed property located in Guinsuan, Poblacion, Zamboanguita, Negros Oriental,
Spouses Diao considered the location of the property to be Sarol's place of residence. However, the records
pertaining to Sarol's claim over the subject property reveal that her place of residence is in Tamisu, Bais
City, Negros Oriental. The Deed of Sale[38] dated July 20, 2011 between Sarol and Claire Chiu indicates
that Sarol's residence is in "Tamisu, Bais City."[39] TCT No. 103-2012000605[40] or the transfer certificate
of title registered under Sarol's name for the subject property also indicates that Sarol's place of residence is
in "Tamisu, Bais City, Negros Oriental Central Visayas."[41] Absent any allegation and evidence to prove
otherwise, We give credence to Sarol's position that her place of residence is not in Guinsuan, Poblacion,
Zamboanguita, Negros Oriental. For this reason, the service of summons should have been made in Tamisu,
Bais City, Negros Oriental.

The preferred mode of service of summons shall be done personally upon the defendant or respondent.[42]
However, our rules set out other modes of service. Section 7, Rule 14[43] of the Rules of Court allows the
substituted service of summons if, for justifiable causes, the defendant cannot be served within a reasonable
time. It shall be effected by leaving copies of the summons: (a) at the defendant's residence with some
person of suitable age and discretion residing therein; or (b) at the defendant's place of business with some
competent person in charge thereof. "Dwelling house" or "residence" refers to the place where the person
named in the summons is living at the time when the service is made, even though he may be temporarily
out of the country at the time. Similarly, the terms "office" or "regular place of business" refer to the office
or place of business of defendant at the time of service[44] As discussed, We found that the address in
Guinsuan, Poblacion, Zarnboanguita, Negros Oriental is not Sarol's place of residence. Therefore, service of
summons to Sarol, even by substituted service, should have been effected in Tamisu, Bais City, Negros
Oriental. Assuming that Guinsuan, Poblacion, Zamboanguita, Negros Oriental is Sarol's regular place of
business, We find that there was no substituted service effected. The Sheriff's Return of Summons[45] dated
April 16, 2015 and Sheriff's Return of Alias Summons[46] dated July 25, 2015 report the unsuccessful
service to Sarol because she is out of the country. Sheriff Tale accounted in the Return of Alias Summons
that he merely inquired from the caretaker the whereabouts of Sarol.[47] From the foregoing, the returns of
the sheriff do not state that substituted service of summons was made to the designated persons provided
under Section 7, Rule 14.

Spouses Diao are not totally without recourse as the rules allow summons by publication and extraterritorial
service. These are extraordinary modes which require leave of court.[48] In fact, in view of Sheriff Tale's
reports of failure to serve summons on Sarol, Spouses Diao moved for the extraterritorial service of
summons by publication under Section 15,[49] Rule 14 of the Rules of Court.[50] Under this rule, one of the
modes to effect the extraterritorial service of summons is by publication in a newspaper of general
circulation in such places and for such time as the court may order, in which case a copy of the summons
and order of the court shall be sent by registered mail to the last known correct address of the
defendant. Furthermore, to avail this mode, the action or complaint filed against a non­resident defendant:
(1) affects the personal status of the plaintiff or relates to; or (2) the subject of which, is property within the
Philippines, in which the defendant has or claims a lien or interest, actual or contingent; or (3) in which the
relief demanded consists, wholly or in part, in excluding the defendant from any interest therein; or (4) the
property of the defendant has been attached within the Philippines. We emphasize that it is the duty of the
court to require the fullest compliance with all the requirements of the statute permitting service by
publication. Where service is obtained by publication, the entire proceeding should be closely scrutinized
by the courts and a strict compliance with every condition of law should be exacted.[51]

Here, as Sarol is out of the country and the action pertains to her interest over a parcel of land located in the
Philippines, the RTC granted the extraterritorial service on Sarol by publication in a newspaper of general
circulation in the. City of Dumaguete and in the Province of Negros Oriental, for two consecutive weeks
and to send copies of the summons and of the order of the court a quo by registered mail to the last known
address of Sarol in Guinsuan, Poblacion, Zamboanguita Negros Oriental.[52] Following the provisions of
Section 15, Rule 14 of the Rules of Court and the aforementioned order of the court, publication must be
duly observed and copies of the summons and order of the court be served at Sarol's last known correct
address by registered mail, as a complement to the publication. The failure to strictly comply with the
requirements of the rules regarding the mailing of copies of the summons and the order for its publication is
a fatal defect in the service of summons. Considering that Sarol's last known address is in Tamisu, Bais
City, Negros Oriental, copies of the summons and order of the court must be sent to this address. As
Spouses Diao furnished an address in Guinsuan, Poblacion, Zamboanguita, Negros Oriental, service of
summons by publication is defective in view of the failure to mail the requirements of Section 15, Rule 14
to the correct address of Sarol. Relatedly, the findings of the CA on service of summons by publication
under Section 16,[53] Rule 14 of the Rules of Court cannot be considered proper because this rule also
follows the same procedures set out in Section 15, Rule 14 of the Rules of Court on publication and mailing
to the last known correct address of the defendant or respondent. Spouses Diao only assert compliance with
publication of summons in Dumaguete City and Negros Oriental. There were no records presented showing
proof of service by registered mail of the summons and the order of the court to the last known address of
Sarol as required under the rules by the court a quo in this case.

We reiterate that the service of summons is vital and indispensable to defendant's right to due process.[54] A
violation of this due process is a jurisdictional defect[55] which renders null and void all subsequent
proceedings and issuances in relation to the case.[56] Thus, the judgment[57] and the Writ of Execution[58]
issued by the RTC of Dumaguete City, Branch 44 in Civil Case No. 2015-15007 is null and void. In which
case, We find that Sarol's availment of the petition for annulment of judgement under Rule 47 of the Rules
of Court[59] is proper. Our rules explicitly provide that lack of jurisdiction is one of the grounds in a petition
for annulment of judgment.[60] Lack of jurisdiction on the part of the trial court in rendering the judgment
or final order is either lack of jurisdiction over the subject matter or nature of the action, or lack of
jurisdiction over the person of the petitioner.[61] In cases involving jurisdiction over the subject matter, We
have recognized denial of due process as a valid ground to file a petition for annulment of judgment.[62]
Section 1[63] of Rule 47 of the Rules of Court provides that this remedy shall be available where the
ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer
available through no fault of the petitioner. Further, a petition for annulment of judgment because of lack of
jurisdiction over the person or subject matter may be proved at most by the evidence on record but never by
extraneous evidence.[64] Had there been the proper service of summons, Sarol would have had such
remedies as, a motion for new trial, appeal, certiorari, petition for relief from judgment, among others, to
assail the Decision of the RTC of Dumaguete City, Branch 44. In view of the failure to properly serve
summons, Sarol could not have learned of the instant case and had no other recourse but to file a petition
under the extraordinary remedy of annulment of judgment provided in Rule 47 of the Rules of Court.

WHEREFORE, the petition is GRANTED. The Resolution dated December 13, 2018 of the Court of
Appeals in CA-G.R. SP No. 12099 is REVERSED and SET ASIDE. The Decision dated December 13,
2017 and the Writ of Execution dated May 2, 2018 of the Regional Trial Court of Dumaguete City, Branch
44 in Civil Case No. 2015-15007 are declared NULL and VOID.

SO ORDERED.

Peralta, C. J., Caguioa, Zalameda, and Gaerlan, JJ., concur.

 

[1] Rollo, pp. 27-53.

[2]
Penned by Associate Justice Dorothy P. Montejo-Gonzaga, with the concurrence of Associate Justices
Edgardo L. Delos Santos (now a Member of the Court) and Edward B. Contreras; id. at 6-14.

[3] Id. at 56-72.

[4] Id. at 57-58.

[5] Id.

[6] Id. at 105-106.

[7] Id. at 104-109.

[8] Id. at 107-108.

[9] Id. at 120.

[10] Id.

[11] Id. at 121.

[12] Id.

[13] Id. at 122.

[14] Id. at 61.

[15] Id.

[16] Id. at 125-126.

[17] Id. at 130.

[18] Id. at 140.

[19] Penned by Presiding Judge Neciforo C. Enot; id. at 155-160.

[20] Id. at 220-225.

[21] Id. at 161-162.

[22] Id. at 56-72.

[23] Id. at 71-72.

[24] Supra note 2.

[25] Rollo, pp. 10-13.

[26] Id. 30-32.

[27] Id. at 32-33.

[28] Id. at 36-42.

[29] Id. at 42-44.

[30] Id. at 1306-1307.

[31] Id.

[32]Herrera, O., Remedial Law Vol. 1, 2000 Ed., p. 665, citing Ablaza v. CIR, 211 Phil. 425, 431 (1983);
Paramount Insurance Corporation v. Judge Japzon, 286 Phil. 1048, 1055 (1992); Toyota Cubao, Inc v. CA,
346 Phil. 181, 186 (1997).

[33] De Pedro v. Romasan Development Corp., 748 Phil. 706, 726 (2014).

[34] Herrera,O., Remedial Law Vol. 1, 2000 Edition, p. 665, citing Toyota Cubao, Inc. v. CA, 346 Phil. 181,
187 (1997), which cited Keister v. Judge Navarro, 167 Phil. 567, 572 (1977).
[35] Rollo, p. 369.

[36] Id. at 104-109.

[37] Id. at 104-105.

[38] Id. at 329.

[39] Id.

[40] Id. at 338.

[41] Id.

[42] Supra note 33 at 727.

[43] RULE 14 - Summons

xxxx

Section 7. Substituted service. - If, for justifiable causes, the defendant cannot be served within a reasonable
time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at
the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by
leaving the copies at defendant's office or regular place of business with some competent person in charge
thereof.

[44]Express Padala (Italia) SPA v. Ocampo, 817 Phil. 911, 919, (20 17), citing Keister v. Judge Navarro,
167 Phil. 567, 573-574 (1977).

[45] Rollo, p. 370.

[46] Id. at 61.

[47] Id.

[48] RULES OF COURT, Rule 14, Section 17; supra note 44 at 920.

[49] Section 15. Extraterritorial service. - When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent,
or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest
therein, or the property of the defendant has been attached within the Philippines, service may, by leave of
court, be effected out of the Philippines by personal service as under section 6; or by publication in a
newspaper of general circulation in such places and for such time as the court may order, in which case a
copy of the summons and order of the court shall be sent by registered mail to the last known address of the
defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall
specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the
defendant must answer.
[50] Rollo, pp. 125-126.

[51] Acance v. Court of Appeals, 493 Phil. 676,688 (2005), citing Dulap v. CA, 149 Phil. 636, 649 (1971).

[52] Rollo, p. 130.

[53]Section 16. Residents temporarily out of the Philippines. - When any action is commenced against a
defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by
leave of court, be also effected out of the Philippines, as under the preceding section.

[54] San Pedro v. Ong, 590 Phil. 781, 795 (2008).

[55] Supra note 33.

[56] Supra note 34.

[57] Supra note 19.

[58] Supra note 21.

[59] Rollo, p. 57.

[60] Section 2, Rule 47 of the Rules of Court.

Section 2. Grounds for annulment. - The annulment may be based only on the grounds of extrinsic fraud
and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion
for new trial or petition for relief.

[61] Mangubat v. Morga-Seva, 773 Phil. 399, 409 (2015), citing Pinausukan Seafood House, Roxas Blvd.,
Inc. v. Far East Bank & Trust Co., 725 Phil. 19, 35 (2014).

[62] Arrieta v. Arrieta, G.R. No. 234808, November 19, 2018.

[63] RULE 47 - Annulment of Judgments of Final Orders and Resolutions

Section 1. Coverage. - This Rule shall govern the annulment by the Court of Appeals of judgments or final
orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies are no longer available through no fault of the
petitioner.

[64]Herrera, O., Remedial Law Vol. II, 2000 Ed., p. 697, citing Arcelona Court of Appeals, 345 Phil. 250
(1997).

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